Malaysian Bar reiterates its call to the Government to establish the IPCMC — Christopher Leong

AUG 16 — It was in May 2005, over nine years ago, that the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police (“Royal Commission”) published its report to address the “widespread concerns regarding the high incidence of crime, perception of corruption in the Royal Malaysia Police (Polis Diraja Malaysia, “PDRM”), general dissatisfaction with the conduct and performance of police personnel and a desire to see improvements in the service provided by the police”.1

The report by the Royal Commission acknowledged that there are indeed great challenges confronting the PDRM.

The challenges include:

1) widespread corruption in PDRM;

2) widespread non-compliance with prescribed laws and human rights obligations among police personnel; and

3) inadequate awareness and respect for the rights of women and children.

In addition, the Royal Commission also identified that too many deaths in custody, the failure of the police to investigate and the authorities to hold inquests into these deaths were key concerns raised by members of the public, NGOs and international organisations.

Today, the Malaysian Bar reiterates our call to the Government to establish the Independent Police Complaints and Misconduct Commission (“IPCMC”), particularly in light of the deaths in police custody that continue unabated.

The Royal Commission stressed that, owing to the nature of the job and existing police culture, the code of conduct within the force had failed to ensure supervision and command accountability in protecting the rights and the interests of the public.

To address these challenges, the Royal Commission made 125 specific recommendations and emphasised that the internal oversight mechanism governed by the police themselves was “inadequate, unreliable and frequently ineffective”.

The most vital of the recommendations was the proposal to establish the IPCMC, an independent, external commission tasked solely to receive and investigate complaints about the PDRM's misconduct and abuse.

In recommending the setting up of the IPCMC, the Royal Commission had stated in its report that:

…When officers act in contravention of laws and regulations without fear of investigation or reprimand, the culture of impunity begins to develop.  Each wrongdoing that is not investigated or punished or is supported by higher ranks within the police leadership leads to the perception that such misconduct is permissible.  As each new generation of officers observes and learns from their superiors, the culture becomes embedded in all the ranks of the PDRM.2

It also studied various models of external oversight, paying particular attention to mechanisms established in Commonwealth countries because of the similarities in legal tradition and experience, but also studied mechanisms in operation in non-Commonwealth countries.  Among the systems studied were the United Kingdom’s Independent Police Complaints Commission as well as other police oversight bodies in New South Wales and Queensland in Australia, and Hong Kong.

The Royal Commission went so far as to publish a full-fledged Bill to implement the IPCMC as part of its Royal Commission report.

A policy factsheet on the PDRM that was released by the Centre for Public Policy Studies on 26 August 2008 stated that the then-Inspector General of Police had said that 90 per cent of the recommendations had been implemented as of March 2007.  The same factsheet stated that according to the then-Prime Minister Abdullah Ahmad Badawi, the figure stood at 82 per cent.

It is unclear how either of these figures was arrived at, since they do not tally. It remains unclear which of the 125 recommendations of the Royal Commission is said to have been implemented.  The fact is that many recommendations remain outstanding, chief amongst them being the recommendation for the establishment of the IPCMC.

In the meantime, it is alarming that detainees continue to die under questionable circumstances while in the custody of the police.

According to information received from the Government in Parliament on 26 June 2013, there was a total of 231 deaths in police custody between the year 2000 and May 2013. That is approximately one death in custody every three weeks during that period.

One of the most notorious deaths in custody cases was that of 32-year-old Dhamendran Narayanasamy, who was found dead at the Kuala Lumpur police contingent headquarters on 21 May 2013, his eleventh day in police remand.

PDRM initially claimed that Dhamendran had died from breathing difficulties.

However, following a post-mortem examination conducted at the Kuala Lumpur Hospital on 22 May, the pathologist’s full post-mortem report documented 52 injuries on Dhamendran’s body and concluded:

There was no significant natural disease found in his body that could have caused or contributed to his death at that particular moment in time.  Each of his ears was still stapled with a metal staple. Post-mortem examination revealed he sustained multiple blunt force trauma in his body. These injuries were caused by blunt objects and the wounds were relatively fresh. No defensive wound was identified in the body of the deceased.  The overall pattern of these injuries is neither self-inflicted nor accidental in nature.3

The cause of death was determined to be "diffused soft tissue injuries due to multiple blunt force trauma".

Six days after Dhamendran’s death, another death in police custody occurred: James Ramesh, 40, was found dead at the Penang police contingent headquarters on 27 May 2013.

These two deaths in quick succession caused much public outrage.  As a result, the Enforcement Agency Integrity Commission (“EAIC”) established a task force on 28 May 2013 to investigate the custodial deaths of the two men. It is disappointing that although more than a year has passed, there has been scant news on the investigation and findings of the task force for either case.

The Malay Mail Online on 6 April 2014 quoted an unnamed source who said that while the EAIC task force’s probe on the case of James Ramesh is still ongoing, the EAIC’s investigation on Dhamendran’s case had been suspended pending the court trial against the four police officers charged with his murder.

The unabated deaths in custody tell us that one of the very reasons why IPCMC was mooted has not been seriously addressed by the Government.

The Court of Appeal has recently called for “zero tolerance” of custodial deaths and recommended independent public inquiries to be held for all such cases.

On 8 August 2014, when delivering the judgment of the Court of Appeal on the case of A Kugan who died in police custody five years ago, Justice David Wong Dak Wah said:

There should be zero tolerance to any custodial death in all remand centres in the country. And should custodial death happen, a public independent inquiry must be initiated commensurate with the right of the family of the deceased to know when there is some doubt as to the cause of the death.

In his written judgment on the same case, Justice David Wong Dak Wah expressed concern over the admission of former Selangor police chief Khalid Abu Bakar, who is now the Inspector General of Police, that he had negotiated with the Attorney General for investigations into the death be merely confined under section 330 of the Penal Code, which is for voluntarily causing hurt to extort a confession or to compel the restoration of property.

The judge described Khalid’s actions as an affront to fair play and transparency.  Further, the Court of Appeal stated that in a complaint of this nature, the police should not be permitted to investigate themselves, where the police would be acting as both judge and jury.  This is akin to “asking a wrongdoer to do their own investigations and determine the appropriate action”.

With such blatant or obvious misunderstanding of good governance, fair play, accountability and transparency by the highest-ranking police officer, the need for the IPCMC could not be clearer.

Following the recommendation of the Royal Commission, the Government initially took steps towards setting up the IPCMC, with overwhelming support from civil society.  Regrettably, its implementation came to a halt in 2006 after the PDRM strongly objected to it and reportedly held the Government to ransom by threatening to let crime rise, to resign en masse and to vote for the opposition.4

Instead of reprimanding the PDRM, the Government relented and downplayed the importance of establishing the IPCMC.  The Government then proposed to establish the EAIC as an alternative to the IPCMC, claiming that the EAIC would be able to provide the necessary oversight.

The EAIC’s mission is to strengthen the service delivery system with integrity amongst the Malaysian enforcement agencies through the management of complaints and investigations in a transparent, bold, dutiful and professional manner.

The EAIC Act, providing for its establishment, was passed by the Dewan Rakyat on 1 July 2009, four years after the IPCMC was first mooted.  It took another 19 months for the EAIC to officially begin operating on 1 April 2011.

However, in July 2013, the Deputy Home Minister was reported to have said that the EAIC only began full operations in 2012.5

It is now 2014.  It has become apparent that the EAIC has failed in its purpose.  The EAIC is not only a watered-down IPCMC; it would appear that the EAIC was in fact designed to fail.

Firstly, the EAIC is not wholly dedicated to receiving and investigating complaints of misconduct by the PDRM.  It has 19 different government agencies under its purview.  The agencies include PDRM, which has over 112,000 personnel (excluding the Special Branch), Ikatan Relawan Rakyat Malaysia ("RELA") which has over three million members, and the Malaysian Road Transport Department which has over 8,000 personnel.  Thus the EAIC’s workload and focus are diverse, heavy and not specialised, which leads me to my second point.

Despite having 19 different agencies under its purview, the EAIC is severely under-resourced.  According to federal budget reports, the EAIC received a budget of RM7.2 million in 2013 and RM7.7 million in 2014.

At the EAIC Convention 2013 held on 20 May 2013, former Chief Justice Tun Abdul Hamid Mohamad delivered a detailed critique of the EAIC’s weaknesses, including that of the EAIC’s expenditure. He stated:

…since [the EAIC’s] establishment in September 2011 until the end of 2012, only one disciplinary action and two warnings had been handed down.  For a budget of RM14 million for the two years, they are very costly indeed.

Thirdly, the EAIC is also severely understaffed.  In an interview with The Malaysian Insider in 2013, the then-CEO of the EAIC, Nor Afizah Hanum Mokhtar, revealed that the EAIC had only one investigation officer as of 16 May 2013.

She added that in the first six months of 2014, 180 complaints had been received.  In 2013, 301 complaints had been received.  That is almost one complaint a day.  It is clear that the caseload upon that one investigating officer is an impossible one.

Fourthly, the EAIC does not have any bite.  It can investigate and document a complaint and then submit its recommendations to PDRM but it cannot compel the PDRM to accept or implement its recommendations.  Furthermore, upon receiving the EAIC’s recommendations, the PDRM’s internal disciplinary mechanism can ignore them and conduct its own investigation.  Thus, there is a duplication of work causing a waste of resources.

Last but not least, the six EAIC commissioners who were appointed on 1 April 2011 had their three-year term expire on 31 March this year.  To our knowledge, no new commissioners have been appointed to date, rendering the EAIC a commission without any commissioners for the past four months.

These fundamental weaknesses within the EAIC underscore the lack of importance with which the EAIC is regarded by the Government.

The Malaysian Bar urges the Government to acknowledge the EAIC’s failure to address the challenges faced by the PDRM and the very serious concerns of the public, and to revive the initiative for the establishment of the IPCMC. There should be no more dithering, delays or excuses.  The IPCMC remains as relevant today as it was when the Royal Commission’s report was released in 2005.

There must be transparent civilian oversight of, and public accountability by, the PDRM.  PDRM must strengthen respect for the rule of law and human rights among its officers and its rank and file, and be seen to punish misconduct by its personnel.

This urgency is not just a matter of punishing the guilty, but of valuing human life.

As stated by the Supreme Court of India in the case of Pradesh Munshi Gautam (dead) v State of Madhya Pradesh [2005] AIR SC 402, death in police custody is "...one of the worst kinds of crime in a civilized society governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens ... and is an affront to human dignity ...".

The track record of one-death-in-custody-every-three-weeks is a damning indictment of the PDRM.  It harms the very soul of Malaysian society that lives have been lost under the supervision of the very officers who have the duty to protect and serve the public.

If the PDRM is serious in aspiring to be a world-class professional and disciplined police force that embraces the values of integrity, efficiency, accountability and service, there is no reason for the PDRM to be resistant to the proposed IPCMC.  It must be courageous enough to submit itself to an independent external oversight commission that is dedicated to the police force.

Only then can  the PDRM develop itself into an institution that lives up to its motto of “Tegas, Adil dan Berhemah” (Firm, Fair and Prudent) and engender consistent respect from all Malaysians.

 

1 Report of the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police (2005), page 1.

2 Report of the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police (2005), page 122.

3 "POLICE TORTURE & COVER-UP: 52 injury marks found on Dharmendran's body​", Malaysia Chronicle, 1 June 2013.

4 “Cops protest to PM over proposed formation of IPCMC”, The Sun Daily, 30 May 2006.

5 EAIC has solved 31 cases on police since 2009, MalaysiaKini, 5 July 2013.

 

* The above represents the opening remarks by Christopher Leong, President, Malaysian Bar, at the Public Forum on Police Accountability in Malaysia, in Kuala Lumpur today.

** This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail Online.

Related Articles